Mark Walsh is a contributing writer to Education Week. He has covered legal issues in education for more than two decades. He writes about school-related cases in the U.S. Supreme Court and in lower courts.

9th Circuit Rules Again on 'Highly Qualified' Teachers Under NCLB

A federal appeals court on Thursday chimed in again in a long-running dispute over whether the No Child Left Behind Act permits so-called intern teachers to be considered "highly qualified" under the law.

The decision by a panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, again holds that a federal regulation allowing such intern teachers to meet the NCLB definition of highly qualified violated the text of of NCLB. But the court acknowledged that a 2010 action by Congress amended federal law, at least temporarily, to permit the Department of Education regulation to go into effect.

Underlying the case is a battle between the forces of traditional teacher education, including schools of education, and proponents of alternative-teaching programs such as Teach for America. The lawsuit was filed by a group of California activists including California ACORN, Californians for Justice, and groups of minority parents and children, who argue that the Education Department regulation permitted a disproportionate number of teaching "interns" to teach in California schools with large proportions of minority and low-income students.

In its new ruling in Renee v. Duncan, the 9th Circuit panel pointed out that Congress's action, known as Section 163 of a 2010 appropriations bill, was only temporary, through the end of the 2012-13 academic year.

"Section 163 has temporarily modified NCLB," says the opinion by Judge William A. Fletcher. "It provides that the term 'highly qualified teacher' in NCLB includes a teacher who meets the requirements of [the Department of Education regulation]. Section 163 thus provides that an alternative-route teacher who merely 'demonstrates satisfactory progress toward full certification' is 'highly qualified' within the meaning of NCLB. Under Section 163, [the regulation] is consistent with NCLB and is therefore valid. That is, so long as Section 163 remains in effect, it overrules our decision in Renee II."

Renee IISeptember 2010 decision which had blocked the federal regulation that favored intern teachers and which prompted the congressional action It should not be confused with an even earlier ruling (Renee I) by a 9th Circuit panel that had reached the opposite conclusion about intern teachers. The newest decision, issued May 10, is thus Renee III.

In the new decision, the 9th Circuit court said that "by its own terms, Section 163 remains in effect only through the end of the 2012-13 school year. If Congress takes no further action, the pre-Section 163 version of NCLB will again be the law. In that event, [federal regulation] will again be invalid because its definition of 'highly qualified teacher' will again be inconsistent with the statutory definition."

Fletcher wrote the Renee II decision. Judge Richard C. Tallman, who dissented in Renee II and called the lawsuit an attack on Teach for America, wrote a partial dissent to Fletcher's new opinion, criticizing it for its lengthy re-iteration of the reasons why the pre-Section 163 regulation would violate the text of NCLB.

"Because the regulation can no longer violate NCLB, it is unnecessary for the majority to address in this opinion whether--prior to the enactment of Section 163--the challenged regulation violated NCLB," Tallman said. "Any discussion about the pre-Section 163 regulation is largely immaterial to the issue now before us because it depends upon a prediction of what Congress may do in 2013. What Congress has done is prospectively overrule Renee II."

Tallman said he agreed that under legal principles that if Congress fails to act to renew Section 163 by 2013, the majority's opinion in Renee II would again become controlling.

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